Karl Racine, who starting next month will be D.C.’s first elected attorney general, believes the recently approved marijuana legalization initiative can move forward. He told the Washington Post:

“We think Initiative 71 was basically self-enacted, just as the congresswoman does,” Racine said. “And we think there’s good support for that position, and we’re going to support that position.”

At issue is an attempt by congressional Republicans to stop the measure approved overwhelmingly by DC voters. While the 650,000 residents of D.C. have no voting representation in Congress, Congress has the ability to override any local D.C. law.

House Republicans abused this power by adding a rider to the recent omnibus funding law that prevents D.C. from spending any money to “enact” new laws regarding schedule I drugs. However, the exact language they used is very important. The major political leaders in D.C. are claiming the initiative was technically “enacted” when it was approved by voters in November, so funds would only be spent to “implement” it. This means it can move forward without violating the new federal law.

How exactly to define the term “enact” when it comes to the process of adopting new laws in D.C. is not a simple legal question, but if the D.C. Council, the new D.C. Attorney General, and potentially the Obama administration all adopt this same definition it would be very difficult for House Republicans to get the courts to stop it.

I’ve spent every Christmas for the past decade in Colorado with my grandparents, and this year I noticed it was still the same beautiful state it has always been, even though recreational marijuana has now legally been for sale for a full year. The closest thing to the sky falling was a holiday snow storm, giving us a wonderful white Christmas.

Besides seeing a few adult-use marijuana stores, which were mostly tucked away in basement locations, Colorado seemed basically the same as it has in years past. It hadn’t become a lawless wasteland or a place overrun with drugged out zombies. It was effectively the same great state, except now the small segment of adults who choose to consume marijuana have some regulated stores where they can legally buy it and pay taxes on it.

When I asked my grandparents about legal marijuana, they told me it has had basically zero impact on their lives. This is probably why a recent SurveyUSA poll found that if Amendment 64 was put back on the ballot the residents of Colorado would vote for it again.

Elsewhere in the country our states are still spending billions of dollars arresting hundreds of thousands of people for marijuana to effectively prevent their states from being more like Colorado, yet things are going very well in Colorado. In fact, Americans are voting with their feet for Colorado. It currently is the fourth fastest-growing state in the country.

Federal policy on marijuana is neither arbitrary nor set in stone. Proper procedures exist for changing the way that marijuana is regulated in the United States, but a ballot initiative in the federal district is not one of them. If the city were allowed to proceed, it would create legal chaos.

The classification of marijuana as a Schedule I controlled substance was made through a legal and scientific process established by Congress and administered by the Food and Drug Administration and the Drug Enforcement Agency. This classification means that the drug has a high potential for abuse, has no accepted medical use and cannot be used safely even under medical supervision. [...]

The FDA and DEA have a process for analyzing such studies and approving controlled substances. We do not let any other substance become approved by ballot initiative. Every drug must be subject to the same strict scrutiny.

This is significant because the actual language of the rider only prohibits funds from being spent on enacting laws to legalize “any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative for recreational purposes.” Notably the rider doesn’t explicitly prohibit D.C. from using funds next year to legalize “marijuana,” which it easily could have done.

Harris seems to claim in his op-ed that his main legal problem with marijuana legalization in D.C. is that it would conflict with the federal government’s classification of marijuana as a schedule I drug. This implies the use of the term “any schedule I substance” instead of “marijuana” wasn’t sloppy drafting, but purposeful.

The Controlled Substance Act explicitly gives the Obama administration the power to unilaterally move marijuana to a lower schedule. So if the Obama administration moves marijuana to schedule II, III, or IV this rider would no longer impede the D.C. Council from moving forward with legalizing, taxing and regulating marijuana.

Even if the basic democratic rights of the 650,000 people living in D.C. weren’t at stake, the Obama administration should still reschedule marijuana now based purely on logic and the current science.

The federal government effectively acknowledged marijuana’s medical value years ago when it moved synthetic THC, the main ingredient of marijuana, to schedule II and later to schedule III. In addition, the way the government treats other plants that contain scheduled drugs is to put the plants in the same schedule as these pure drugs. For example opium poppy is schedule II along with morphine, and coca leaves are also in schedule II, just as cocaine.

If Obama actually opposes Congress interfering with D.C. home rule and trying to overturn local elections, it appears he has the power to fix it this time.

Late Saturday, the Senate approved an omnibus bill funding the federal government for the next year which contained two big provisions affecting marijuana policy. One very good and one very bad.

On the positive side: Protection for medical marijuana patients.

The funding bill contained a provision preventing the Department of Justice from using funds to arrest or prosecute medical marijuana patients or businesses that are in compliance with state medical marijuana laws. Combined with the Obama administration taking a more hands off approach with regard to local marijuana laws, this new provision should provide added peace of mind and a sense of stability to both patients and providers.

Having Congress not longer actively opposing medical marijuana is a big victory for the reform movement, but not a complete solution. The provision is only a short-term and incomplete fix. Medical marijuana is still technically illegal under federal law which will continue to cause issues with things like taxes for medical marijuana business. The provision also only applies to this one year funding bill.

On the negative side: Assault on the democratic rights of people living in the District of Columbia.

Another provision buried in the omnibus bill is meant to prevent the District of Columbia from moving forward with marijuana legalization. Even though the 650,000 people living in D.C. are denied any vote in Congress, the federal government still has the ability to override any local laws. House Republican insisted on abusing this unfair and anti-democratic Constitutional power to try to stop marijuana legalization in D.C. despite it being adopted by almost 70 percent of District voters last month.

President Obama decided to actively lobby for the omnibus spending bill, which included a policy rider intended to block marijuana legalization in D.C. after the people of the District overwhelmingly voted for it. The rider was designed to strip the basic right of democratic self determination from the voters of D.C., effectively disenfranchising the predominately African-American and Hispanic people living in the District. The voting rights and democracy of some 650,000 people were basically sold out by Obama to possibly avoid a government shutdown fight.

Fortunately, the actual legislative language of the rider leaves open several options Obama could use to undo the terrible damage he helped inflict. The rider reads:

“None of the funds contained in this Act may be used to enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative for recreational purposes.“

1) How do we define “enacted?”

It is the position of D.C.’s non-voting Congresswoman, Eleanor Norton Holmes (D), that Initiative 71 was officially “enacted” last month when voters overwhelmingly approved it, so no funds will actually need to be spent next year to “enact” it. This means the initiative can be sent to Congressional review in January and implemented after it clears that hurdle. If Congress wanted to prevent D.C. from spending money to implement legalization, they should have used the word “implement.”

This could result in a legal change, but if both the D.C. Council and Obama administration endorse this interpretation, it is unlikely to be overturned.

The first option would allow the initiative to go forward, legalizing limited possession and home cultivation, but still preventing the D.C. Council from adopting a bill to tax and regulate recreational marijuana. There are also ways around that, though.

2) Obama can simply reschedule marijuana any time.

Notice the rider does not actually refer to marijuana. Instead it refers to “any schedule I substance under the Controlled Substances Act (21 U.S.C. 801 et seq.) or any tetrahydrocannabinols derivative.”

If the Obama administration uses its power to move marijuana to Schedule II or III, this legal impediment on D.C. taxing and regulating marijuana would theoretically be removed. Potentially, there might still be a legal fight over whether raw marijuana would count as a tetrahydrocannabinols derivative, but one can argue that legal term is meant to apply only to newly-discovered and potentially dangerous synthetic tetrahydrocannabinols derivatives, which are often being sold as “incense.” Once again, if both the D.C. Council and the Obama administration share support for this interpretation of the law, any legal challenge is unlikely to succeed.

It is time for Obama to put his money where his mouth is. Obama has often publicly claimed to care about the principles like democracy, minority voting rights, and D.C. Statehood, but he has failed to fight for them when it matters. Now he faces a clear and simple test to prove if his word means anything. If he actually believes in the importance of voting rights and the “principle of District home rule,” he should use his power to make it happen.